§706-623 Terms of probation. (1) When the court has sentenced a defendant to be placed on probation, the period of probation shall be as follows, unless the court enters the reason therefor on the record and sentences the defendant to a shorter period of probation:

(a) Ten years upon conviction of a class A felony;

(b) Five years upon conviction of a class B or class C felony under part II, V, or VI of chapter 707, chapter 709, and part I of chapter 712 and four years upon conviction of any other class B or C felony;

(c) One year upon conviction of a misdemeanor; except that upon a conviction under section 586-4, 586-11, or 709-906, the court may sentence the defendant to a period of probation not exceeding two years; or

(d) Six months upon conviction of a petty misdemeanor; provided that up to one year may be imposed upon a finding of good cause.

The court, on application of a probation officer, on application of the defendant, or on its own motion, may discharge the defendant at any time. Prior to the court granting early discharge, the defendant's probation officer shall be required to report to the court concerning the defendant's compliance or non-compliance with the conditions of the defendant's probation and the court shall afford the prosecuting attorney an opportunity to be heard. The terms of probation provided in this part, other than in this section, shall not apply to sentences of probation imposed under section 706-606.3.

(2) When a defendant who is sentenced to probation has previously been detained in any state or county correctional or other institution following arrest for the crime for which sentence is imposed, the period of detention following arrest shall be deducted from the term of imprisonment if the term is given as a condition of probation. The pre-sentence report shall contain a certificate showing the length of such detention of the defendant prior to sentence in any state or county correctional or other institution, and the certificate shall be annexed to the official records of the defendant's sentence. [L 1972, c 9, pt of §1; am L 1986, c 314, §24; am L 1989, c 124, §1; am L 1993, c 316, §§3, 6; am L 1994, c 229, §2; am L 1995, c 157, §1; am L 1998, c 172, §7; am L 2001, c 127, §3; am L 2006, c 230, §19; am L 2009, c 88, §§8, 17(1); am L 2010, c 166, §21; am L 2012, c 140, §3 and c 143, §1]

Note

The L 2012, c 140, §3 amendment applies to offenses committed on or after January 1, 2013. L 2012, c 140, §5.

COMMENTARY ON §706-623

This section is in accord with previous Hawaii law providing a maximum probation period of five years in felony cases.[1] The prior law did not, however, state a maximum period of suspension of sentence in felony cases--although, by implication, it could have been read as five years also.[2] With respect to felony cases, this section of the Code changes the law by explicitly correlating the maximum period of suspension with the maximum period of probation. Whether the defendant should be sentenced to probation because the defendant needs supervision, guidance, assistance, or direction is an independent question; there is no rational basis for providing a longer period for suspension than for probation.

Because of the structure of courts in Hawaii, some anomalous results obtained under prior law. Upon the appeal of a misdemeanor case from the district court to the circuit court, the defendant, if conviction was upheld, could have had the defendant's sentence suspended or be sentenced to probation in the same manner and for the same period as a convicted felon.[3] Had the misdemeanant not appealed the misdemeanant would have been subject solely to the district court, the powers of which were more limited in this area. Prior to this Code, the district court did not have a probation service; however, the district magistrate could suspend the imposition or execution of sentence on the terms or conditions the district magistrate deemed best. The period of suspension could not, however, exceed thirteen months.[4]

The changes which this section makes in the law are obvious. It provides a maximum period of suspension of sentence or probation for misdemeanants, petty misdemeanants, and felons regardless of the court handling the case. Secondly, it would allow probation to be utilized by district court magistrates if a probation service is established in that court.

SUPPLEMENTAL COMMENTARY ON §706-623

Section 623 of the Proposed Code provided that the period of suspension or probation shall be two years in the case of a conviction for a misdemeanor or petty misdemeanor. However, the Legislature reduced the period to one year in the case of a conviction for a misdemeanor and six months in the case of a conviction for a petty misdemeanor, finding the proposed two-year period too severe and inconsistent with the actual length of imprisonment allowed upon conviction for these offenses. Conference Committee Report No. 2 (1972).

Act 124, Session Laws 1989, required courts to grant pre-sentence imprisonment credit to defendants who had been sentenced to imprisonment as a condition of probation and who were detained prior to sentencing. Senate Standing Committee Report No. 1342.

Act 316, Session Laws 1993, amended this section to provide that the terms of probation in chapter 706, part II, other than in this section, shall not apply to sentences of probation imposed under §706-606.3, which creates an option for the expedited sentencing of persons who have committed intra-family sexual assault. House Standing Committee Report No. 1174, Senate Standing Committee Report No. 849.

Act 229, Session Laws 1994, amended this section to provide, inter alia, that when a defendant is sentenced to be placed on probation, the period of probation shall be ten years upon conviction of a class A felony unless the court enters the reason therefor on the record and sentences the defendant to a shorter period of probation. The legislature found that a longer probationary period for class A felony drug offenders would protect the public's interests and safety in the unusual cases where probation may be granted. Conference Committee Report No. 62.

Act 157, Session Laws 1995, extended the sunset date of the amendment to this section made by Act 316, Session Laws 1993, from June 30, 1995 to June 30, 2001. The legislature found that the expedited sentencing program served as "a viable alternative in a small number of select cases" and that the program should continue to be available within the criminal justice system. However, the legislature believed that there was insufficient basis to determine whether the program should be made permanent. Conference Committee Report No. 62.

Act 172, Session Laws 1998, amended this section to allow for a two-year sentence of probation for domestic violence convictions. Conference Committee Report No. 80.

Act 127, Session Laws 2001, repealed the sunset date for the expedited sentencing program of the family court, and in doing so, also prevented the possibility of the inadvertent repeal of important probation laws established in connection with the program. The purpose of the program was to allow for the expeditious removal of the offender from the family home, in cases of intra-family felony sexual assault or incest, thus allowing the child to remain in the home. The legislature found that the program applied only to those offenders found to be "safe to probate" and minimized the possibility of revictimizing the child by eliminating the need to testify and requiring treatment and supervision of all members of the child's family. The legislature further found that the program had been effective and beneficial to the families concerned. Senate Standing Committee Report No. 1453, Conference Committee Report No. 114.

Act 230, Session Laws 2006, amended subsection (1) to allow a six-month extension of probation for a petty misdemeanor if good cause is found. House Standing Committee Report No. 665-06.

Act 88, Session Laws 2009, amended subsection (1) to permit probationary periods of eighteen to twenty-four months for persons convicted under various conditions for driving under the influence. Act 88 continued to promote highway safety by statutorily establishing several recommendations of the ignition interlock implementation task force established by Act 171, Session Laws 2008. House Standing Committee Report No. 617, Conference Committee Report No. 116.

Act 166, Session Laws 2010, amended subsection (1) by eliminating probationary provisions for convicted second and third driving under the influence offenders. Act 166 continued the work of the ignition interlock implementation task force, as a final implementation of the recommendations regarding the ignition interlock device program. The legislature found that although gains were made in reducing both driving under the influence arrests and the total number of alcohol-related fatalities, today's offender is more likely to have a highly elevated alcohol concentration and, as a whole, Hawaii's rate of alcohol-related fatalities remains unacceptably high. However, people with revoked licenses still need to get to work, to transport their families, and to fulfill other obligations, and there often is no efficient alternative to driving. Just as there is no single cause of this problem, there is no single solution, and Hawaii needs another tool to address it. House Standing Committee Report No. 718-10, Senate Standing Committee Report No. 2167, Conference Committee Report No. 88-10.

Act 140, Session Laws 2012, amended this section by: (1) allowing for probation for a period of four years for certain class B or class C felonies; and (2) clarifying that prior to granting early discharge, a defendant's probation officer must report to the court concerning the defendant's non-compliance, in addition to the defendant's compliance with the conditions of the defendant's probation. The legislature found that Act 140 was an outgrowth of the Justice Reinvestment Working Group and the Council of State Governments Justice Center to study, analyze, and make recommendations for improvements in the criminal justice system and corrections system in all fifty states. The analysis revealed that crime and victimization rates in Hawaii have declined, as have arrests and felony convictions for violent and property crimes. However, the population under probation supervision and incarceration has not declined, and in some cases had increased. Senate Standing Committee Report No. 2973, Conference Committee Report No. 130-12.

Act 143, Session Laws 2012, amended this section to require a defendant's probation officer to provide the court information regarding the defendant's compliance or non-compliance with probation prior to the court determining whether to grant an early discharge from probation. The legislature found that under existing law, the court may grant early discharge from probation without input from a defendant's probation officer regarding that defendant's compliance with probation terms. Act 143 served as an additional tool for the courts to use in their assessment and determination of whether a defendant should be discharged from probation early. Conference Committee Report No. 73-12.

Case Notes

Subsection (2) pertains to periods of detention served following arrest and prior to the sentence imposed by the court in the first instance; circuit court did not abuse its discretion in refusing to credit defendant for time served in conjunction with previous periods of probation. 79 H. 194, 900 P.2d 770 (1995).

Section does not authorize trial court to compel a criminal defendant to execute a promissory note in the amount of any restitution order, or any balance thereof, as a condition of probation. 83 H. 105, 924 P.2d 1211 (1996).

Defendant was not statutorily entitled to credit for time served under presentence house arrest where conditions and restrictions of house arrest did not amount to detention in a "state or county institution"; as defendant enjoyed no visitation, living environment, or telephone or other communicative restrictions, and was under the direct supervision of private citizens, including parents, relatives and friends, defendant was not confined in an "other institution" within the meaning of subsection (2). 94 H. 315, 13 P.3d 324 (2000).

To fall within the ambit of subsection (2), a defendant detained in an "other institution" must be confined in such a manner as to be tantamount to imprisonment in a state or county correctional institution; defendant must be under the direct supervision and control of state or county actors, or actors under state or county control, such as subcontracted halfway houses or drug treatment centers. 94 H. 315, 13 P.3d 324 (2000).

Cited: 146 F.3d 661 (1998).

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§706-623 Commentary:

1. H.R.S. §711-77.

2. Id.

3. Id.

4. H.R.S. §710-12.